#### Parshall *versus*Conklin.

1. An action was brought in assumpsit, and verdict for the plaintiff. A rule for new trial was awarded. At the argument, a rule to amend the form of action to debt was awarded. -After advisement, the Court, on same day, made bothrules absolute, “neither party to file bill for witnesses for the term.” *Held,*to be a condition on^vhich the new trial was granted, and was in the power of the court.

2. Plaintiff had “option” purchases for lands. He was not bound until he elected to take them. He assigned to defendant the undivided half. He then agreed to sell the other half to defendant, he to pay to plaintiff “ one-half of all he may sell the land for, less the purchase-money and expenses,” etc. Defendant paid the purchase-money for a tract, took the title to himself, and did not offer to convey one-half to plaintiff. *Held,*that he could not claim a credit for the purchase-money in settlement with plaintiff.

3. Defendant having undertaken to sell the lands for their common benefit, could not bind plaintiff by taking the land from his vendors, unless he had made a *boncufide*and binding sale to purchasers.

4. The contract was not that defendant should bind plaintiff’s option by taking lands, unless he could make sales for their mutual benefit.

March 28th, 1876.

Before A&new, 0. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Warren*County, No. 135, to January Term, 1875.

This was an action of assumpsit, brought August 5th, 1870, by John Conklin, to the use of J. A. Neill, against James Parshall.

The declaration was in tbe common counts; the pleas were non-assumpsit, payment, and set-off with leave.

The case was tried on the 13th of December, 1873, and a verdict was rendered for the plaintiff for $10,271.31. On the same day the Court granted a rule for a new trial. On the 9th of January, 1874, the rule was argued, and held under advisement. On the same day the plaintiff moved to amend the form of action from assumpsit to debt, and to file an additional declaration.

The Court granted a rule to show cause, in accordance with the motion. On the 22d of January, the Court made both rules absolute, neither party to file a bill for witnesses for the term.

On the 14th of March, 1874, the plaintiff paid thé prothonotary $83, the costs in the case, except the defendant’s bill for December Term, 1873. On the same day, a declaration in debt was filed, including a special count, setting out the contract on which the suit was brought. On the 13th of April the Court granted a rule on defendant to plead in ten days, or judgment.

“April 23d, 1874. The defendant, protesting that the form of the action in this case has not been changed, he-*488cause the costs have not been paid by the plaintiff, as required by law, and also protesting that the plaintiff has not the right to compel or require another plea to be pleaded, hereby and only in obedience to the rule of court granted on the 13th instant, without prejudice to his rights, and without admitting or in any way recognizing that the form of action has been changed, pleads *ml debet,*payment, set-off' with leave, etc.

“June 30th, 1874. Leave granted to amend the declaration by adding the common counts. June 30th, 1874. Amended declaration filed.”

The case was tried November 11th, 1874, before Trunkey, P. J., of twenty-eighth district.

The defendant offered in evidence an article of agreement, ‘ under seal, dated December 19th, 1864, between John Conklin, plaintiff, and James Parshall, defendant.

The offer was objected to by defendant, because the form of action has not been changed, for the reason that all costs have not been paid, and the action remains in assumpsit, and this agreement is sealed, and not admissible. By the Court:

“ The record showing that the Court granted a new trial, and leave to change form of action on same day, we will not presume that the throwing out of defendant’s bill for December Term was not as a condition or term of new trial. All other costs appear to be paid. Offer is received, and a bill of exceptions is sealed.”

The plaintiff then gave in evidence this agreement:

“ Articles of agreement, made this 19th day of December, one thousand eight hundred and sixty-four, by and between John Conklin, of Warren County, of the first part, and James Parshall, of the second part, of the same place, witnesseth: That whereas , the said Conklin, of the first part, has this day assigned unto James Parshall, of the second part, for a valuable consideration paid him in hand, the one undivided one-half of a tract of land sold him by Joseph Morrison and J. Ii. Morrison, containing 160 acres, by contract dated the 31st day of October, 1864, and described in it, which Í3 one-half assigned to James Parshall. Also, whereas the said Conklin has assigned this day unto J. Parshall the undivided half of four other tracts of land, namely, first, 50 acres of land bought of Milo Rounds and of Vaneps,

and 50 acres of William Cady, and 50 acres bought of Nathan Cady,- of Pittsfield, and 150 acres bought of J. N. Starling, of Deerfield, and duly described in the contracts of which the one-half was this day assigned to James Parshall by John Conklin, and the contracts in said Parshall’s hands. *489That the party of the first part, Conklin, for a consideration paid to him in hand, the receipt of which is hereby acknowledged, does agree and does sell and assign unto the party of the second part, the other undivided one-half of all the lauds described in the contracts above mentioned, and all rights and privileges that the said Conklin has or may have to sell or convey and make title to the above-described contracts or purchases of lands, and as a further consideration the second party agrees to pay unto the said first party the one-half of all he may sell the said tracts of land for, less the purchase-money and the expenses of selling or causing the same to be sold. -

“ Witness our hands and seals tbe day and year first above written.

“ John Conkl'in. [seal.]

“ James Parsh all. [seal.]

“ The said Parshall charges nothing for his time or trouble.”

Conklin, plaintiff, testified : That he held contracts for the land with Nathan and Reuben Cady, two pieces, and with Morrison and Round; a piece from J. S. Vaneps; a piece called “ The Shay,” 300 acres, known as Vaneps, Barnhart, or Shay. All but one of the contracts, which he had not with him, were given to the defendant; the Cadys’ were for 50 acres each; the Round’s contract was not given to defendant. The contracts were refusals — if not paid before such time to be void.

Plaintiff gave in evidence: Letter to him from defendant, dated December 28th, 1864, in which, amongst other things, defendant says: “Be sure and have your contracts with Morrison, Round, and Vaneps all right; send me the description of the lands.”

Letter, December 29th, 1864, defendant to plaintiff:

“ .... I think there will be no doupt but your lands-can all be sold, and if you can get a hold of some other good tracts on a long time, do so, and send them to me. I will see what can be don in Washington city while I am there. Expect there will be some partys out there the last of next weeak to see our lands. I will send you a letter of interduction with them. I wish you would lease out about half an acre on the morrison or millow Round tract to some party to sink a well, and give them three-fourths of the oil for-sinking, and you have them commence at once and put up a-derrick, make a contract with them, binding them to sink a well in one year from date, or forfet their contract (as-*490*you*understand), and send me a copy of the lease. I will pay the cost of building a derrick. I have not received a plot and a statement of the lands, how they are situated, etc., yet; you was to send them to me at once.”

Also: Deed, December 28th, 1869, John F. Vaneps to Silas Shay:

Deed, February 14th, 1865, defendant to Morris C. Hull, A. F.Smith, J. F. Cunningham,and William M. Smith; consideration, $22,000 ; Parshall homestead, 45 acres.

Deed, February 9th, I860, John F. Vaneps to defendant; consideration, $8000.

Deed, February 9th, 1868, John Barnhart to defendant; consideration, $2000 for 84 acres 44 perches.

Assignment, February 10th, 1865; consideration, $500.

Lease, February 12th, 1865, Tipton Oil Company to defendant.

Deed, February 28th, 186 5, defendant to Morris C. Hull, A. F. Smith, John F. Cunningham, and William M. Smith; consideration, $27,000 for 233 acres, part Vaneps, part Barn-hart, and others.

Deed, February, 28th, 1865, same to same; consideration, $45,000.

Assignment, March 11th, 1865, Tipton Lease, defendant to M. C. Hull and others as above, for “ valuable consideration.”

*Vaneps*testified: That he conveyed 200 acres to defendant under a contract he had with plaintiff’; defendant paid witness $5000; that was the actual consideration; witness’s, Barnhart’s, and Shay’s piece was about 300 acres; the whole belonging to the three was 300 acres; each conveyed to defendant.

Plaintiff gave in evidence letters of defendant to him, of January 20th, 1865, telling plaintiff to sell the Vaneps 300 acre tract, Bound and Morrison tract if he could, and telegraph to him; defendant would telegraph to plaintiff if he sold. Defendant spoke of the profit that he (plaintiff) would make if sales should be completed as he hoped; urged him to get the contracts acknowledged. “ You attend to these things properly; if you should sell and they would make title it would spoil the whole thing and get us into trouble, and we will sell, for I will not give up until I accomplish it.”

Also another letter, same to same, of same date, saying: ■“ I think I have sold the Vaneps 300 acres, the Morrison 160 acres, and the Milo Bound 50.....Expect to start home on next Friday, and the parties with me whó get the prop- • erty ; have everything working right.”

*M. G. Hull*testified: That he with Cunningham and the *491two Smiths purchased the oil lands from Parshall; 500 acres of oil land, made up of five different tracts; the price was $90,000; Cunningham and witness paid $67,500 for three undivided fourths ; the Smiths agreed to pay $22,500 cash; the Barnhart and Vaneps 300 acres was valued at $27,000, the Parshall homestead at $22,500; another 3-J acres $7000; witness and Cunningham paid $7500; it was indorsed on the contract by Parshall as paid; none of the money paid by witness and Cunningham was paid to the Smiths or handed to them ; witness asked defendant whether Smith had paid any money ; defendant said they did pay something, but not as much as witness expected they did;' before making the deeds, and whilst looking at the Vaneps and Barnhart tract, the reservation of timber was spoken of; the parties said the reservation made no difference, they had more timber than they wanted; the reservation did not affect the price paid; defendant had said before that the timber had been reserved, and all consented.

*Joseph Morrison*testified: That he had a contract with plaintiff for Sutten tract; defendant asked him for the deed, saying the money was ready ; witness declined, because there was a verbal understanding with Conklin to be complied with before he made the deed; defendant said he had not been informed of it, and would not be bound by it; the understanding was that Conklin was to divide profits with witness and others; defendant said he had not been apprised of that; defendant offered witness $8000 instead of $7000 if he would dp it. Witness afterward determined to make the deed ; whilst preparing to do it he met plaintiff, who remonstrated against it, saying he would do better than defendant would. When they came to make the deed no person was at the place to receive it, nor showed any money then or since; “about that time the bubble burst;” the day they met to make the deed the plaintiff forbade it; said the land stood highest, he had made a better sale, and would be ruined if not carried out.

Plaintiff’ rested.

Defendant testified : He sold the Vaneps, Barnhart, and Shay tract, 300 acres, to A. F. Smith, but conveyed to others; sold other tracts, the -whole for $65,000; the Vaneps was $13,000 ; he did not receive that amount for it; before closing he ascertained Vaneps had reserved the timber; the purchaser claimed a reduction; $4000 was taken out; he informed plaintiff of this reduction ; witness received in all $61,000 or $62,000 ;■ Smith said he must have something for his trouble; said was getting 25 per cent.; he “lumped” the property at $90,000; he held defendant to $65,000 and the *492abatement; Smith said the purchasers wished him to take some real estate; defendant agreed to take it; they fixed a time to look at property; the parties came, said they would take it, paid $7000, which had been put up; defendant got three-fourths of the money, Smith got 25 per cent.; defendant’s homestead was put in at $22,000 or $23,000 ; Hull and Cunningham thought they were buying for $90,000; defendant kept no account of his expenses; defendant sold Morrison and Round'tracts to Smith for $45,000; Morrison refused to make title because plaintiff had agreed to give him part of the profit,but would make the deed if defendant would do that; defendant spoke to plaintiff about it, but he gave him no satisfaction; tried for three weeks to get the title from Morrison, and then the parties withdrew their money; plaintiff told defendant that he (plaintiff) told Morrison not to make the deed; defendant paid Round $3000 to make the deed; oil lands fell in spring of 1865; Round land was not worth $400.

The plaintiff, in rebuttal, gave in evidence; Agreement dated January 25th, 1865, between defendant of the first part, and J. F. Cunningham, Maurice C. Hull, A. F. Smith, and "William M. Smith of the second part. Defendant agreed, for the consideration of $90,000, to convey to Cunningham and Hull three-fourths, and to the Smiths one-fourth of five tracts of land, of about 500 acres, being those heretofore spoken of, and an oil lease on the Tipton farm of $30,500, to he paid in cash, the remainder in notes and real estate; $7500 to be paid in cash as soon as the lands had been examined, etc., and the balance on receiving the' deeds; the Smiths to pay for the quarter of the land $22,500, and the others $67,500 for the three-quarters, Cunningham and Hull not to be liable for the Smiths’ default, nor they to be liable for Cunningham and Hull’s default.

There was much evidence on both sides as to the amount of money received by the defendant, as to the interference of plaintiff with the conveyances, and conveyances to defendant, as to the *bona jides*of the dealings in the transactions, expenses, etc., and generally as to the circumstances, merits, and nature of the transaction.

The following are plaintiff’s points:

* * * -* *

2. If the jury believe from the evidence that the sale was to Cunningham, Hull, and the Smiths by written agreement, at and for the sum of $27,000, and that the reservation of the timber upon a portion of the land was a part of said agreement, then the defendant was not bound to deduct *493anything for such reservation, and if he did so voluntarily he cannot charge the plaintiff for such deduction.

3. The evidence shows the relation of the defendant to the plaintiff to be a confidential one; that it was his duty to keep an account of the expenses incurred, in selling lands acquired from the plaintiff separate from other expenses, and if he failed to do so in such a way as to enable the jury to determine how much commission or other expenses is chargeable to those lands, and how much to other lands of defendant’s own, sold at the same time, he is entitled to nothing for such expenses.

* **** *% m**

6. Defendant is not entitled to expenses in trying to sell the Rounds and Morrison lands unless a sale was actually made, or prevented solely by the unauthorized interference of the plaintiff.

The following are defendant’s points:

1. The contract between the parties made Parshall the trustee of Conklin as to an undivided half of the lands described in it, with power to sell, and if Parshall paid the purchase-money due Milo Rounds on his lot in good faith, for the purpose of executing the trust, having negotiated a sale of it at an advance on the cost, he has a right to charge the amount so paid to the common fund, owned by both, before division, and of course to claim a credit therefor in this suit.

2. If the jury believe Parshall had sold the Milo Rounds lot at an advanced price and could have got the money for it, and for that reason was induced to pay the purchase-money to Rounds, and that the consummation of said sale was prevented by the improper interference or wrongful act of Couklin, then Parshall may rightfully charge the plaintiff with the whole amount of money so paid to Rounds over and above what the land is really worth in market, independently of the value then attached to it as oil territory.

* ‡ ‡ $

6. If Conklin had agreed with Vaneps verbally for a reservation of the pine timber on a portion of the land purchased from him, not mentioned in the contract, nor communicated to Parshall until after his negotiation with Smith for the sale, and Parshall had, in consequence thereof, to suffer an abatement on the price of that lot in his final settlement of the sale, he is entitled to charge such abatement to the common fund in his hands, before accounting for the'profits.

*. *• * * *

The Court answered the points as follows:

*494Plaintiffs :

“ 2d. Answered in the affirmative. The defendant’s 6th point is also affirmed. You will remember that Parshall testified that soon after he corniñenced the negotiations with Smith he received a letter from Conklin dated December 29th, 1864, notifying him of this reservation, and that he told Smith of it. Then calling into consideration the testimony of Parshall and all other evidence bearing on this point, are you satisfied from its weight that it led to an agreement for the reduction of the price of the land, and that the land actually was valued less by reason thereof? Jf not, are you so satisfied that a certain sum on that account was to be paid to Smith for assisting to make the sale ? If not, then talk, or mere negotiation about it, preceding the sale, could not prejudice the interests of Conklin. A subsequent arrangement, without notice to, or assent of Conklin, could not affect him. Parshall was bound to act in good faith toward Conklin, and having sold this land with other lands of his own, part for cash, and part for other real estate taken in his own name, the burden is upon him to satisfy you reasonably, by evidence, of all deductions from the price for which he sold the land owned by himself and Conklin. Conklin cannot be benefited by an arrangement between Parshall and Smiths to impose upon Hull and Cunningham, nor should he be prejudiced by any transactions between Parshall and Smith, not in good faith, for the sale of the land.

“ 3d. Answered in the affirmative. But if the evidence is such that you can determine with reasonable certainty how mueh commission and other expenses are chargeable in the sale of these lands, sold with other land of the defendant, at the same time, then he is entitled to an allowance for expenses, as provided for in the contract.

* * Jfc *

“ 6th. If the defendant had negotiated a sale with reasonable prospect of its consummation, and the plaintiff interfered and prevented it, he is liable for expenses. If Parshall was acting in good faith in attempting to effect a sale, and Conklin interfered and repelled a purchaser from further negotiating, he ought to pay the expenses to that time.”

Defendants :

“ 1st. Answered in the affirmative. Such sale must have been actually made and binding upon the parties,-and Par-shall’s acts respecting the Rounds lands consistent with the trust. Although a trustee, standing in a confidential relation to Conklin, there was nothing in their contract to authorize payment of the purchase-money to Rounds to be *495charged to Conklin, unless he had.made a sale. Mere negotiation for a sale was not enough. If Parshall had negotiations for a sale, and, without knowledge or consent of Conklin, paid Rounds the purchase-money due him, and took the land in his own name, and has ever since held and possessed it as his own, then in the absence of evidence of any offer to convey the one-half to Conklin, he cannot claim the money so paid as a credit in this suit.

“ 2. Answered in the affirmative. Unless you find that Parshall took the title to himself, and has since enjoyed and held the land as his own, and still holds and retains it as his own, then answered in the negative.”

The verdict was for the plaintiff for $10,271.79.

The defendant took a writ of error, and assigned for error the admission of the evidence objected to, and the answers to the points.

*S. P. Johnson*and *R.*Brown, for plaintiff in error.

There was no power in the Court to change the form of action till the act of 10th of May, 1871: Section 1, Pamph. L., 265, 1 Br. Purdon, 70. It existed neither at common law nor under the statute of 1806: Strock *v.*Little, 9 Casey, 409.

Being in derogation of the common law, it can be made only in accordance with the terms of the act, that the party applying shall pay all costs up to the time of amendment. That requisition has not been complied with in this case, and yet the Court below, on the second trial, held that the form of the action was changed, and admitted in evidence a sealed instrument as the foundation of the case. The order that neither party should file bills for the term at which the case was tried, was not made as a condition on which the new trial was granted. It was simply an arbitrary order when leave was granted to change the form of the action, and when the rule for new trial was made absolute. It, in effect, renders inoperative that clause in the act of Assembly requiring the payment of *all*the costs, and is a kind of penalty visited on the defendant because the Court committed a palpable error in admitting in evidence a sealed instrument as the foundation for a recovery in an action of assumpsit.

The Court erred in the answer to plaintiff’s 'three points. If a trustee does not keep an account of his expenses he will be allowed such sums as are proved: Perry on Trusts, sections 911, 913 ; Ex parte Cassel, 3 Watts, 442. Parshall taking the title in his own name took it under the contract, and held it as he would the funds, in case he had sold, for the joint benefit of himself and Conklin. There is no dissolution of their original relation, and Conklin is liable for one-*496half the money paid, and is the owner of one-half the land. If a trustee buys in a burdensome lease, or pays off an incumbrance, or makes any other advance for the benefit of the trust estate, he will be allowed the amount so paid: Perry on Trusts, sect. 915; Altimus *v.*Elliott, 2 Barr, 62.

*Clarke*¿f *Noyes*and *W. D. Brown,*for defendant in error.

Whenever substantial jnstice seems to require it, amendments are allowed, even after verdict and error brought: Wampler *v.*Shissler, 1 W. & S. 370; Morris *v.*McNamee, 5 Harris, 173 ; Ward *v.*Stevenson *et al, 3*Id., 22. The payment of the costs is not a condition, but a consequence of the change of the form of action.

By reason of a trustee keeping no accounts, every intendment of fact is to be made against him: Hart *v.*Ten Eyck, 2 John. Ch. Rep., 81; Ex parte Cassel and Spayd, 8 Watts, 443.

Judgment was entered in the Supreme Court, March 31st, 1876.

Per Curiam :

On the same day and at the same time the Court made absolute the rule for a new trial and the rule to amend the form of action; adding, as a part of its action, “ neither party to file bill for witnesses for the term.” This wras clearly a condition of granting a new trial, and therefore within the power of the Court.

There was no error in the qualification of the answers of the defendant’s first and second points. The contracts of 'Conklin were option purchases by him, by which he obtained the refusal, as it is called, of the lands sold to him under the contracts, and was not bound by the purchase until he had determined his option by an election to take the lands. W7hen Parshall undertook to sell these lands for their common benefit, his right to bind Conklin by an election to take the land from his vendors depended on his having made a *bona fide*and binding sale to purchasers. It was not the intent of their contract that he should determine Conklin’s option by taking the lands, unless he could make sales of them for their mutual benefit; otherwise he would bind Conklin to pay for what he did not intend to take until he found he'could dispose of it to others. This’was the very object of the contract in .giving him the refusal. The Court was therefore right in submitting the question of fact whether Parshall had actually negotiated a sale, or was merely in the course of treating for it; or, as the Court termed it, “ had negotiated for a sale.” So, too, if Parshall, without actually making a sale, took the title from Rounds, and held the same as his own, he could not charge Conklin with, the pay*497ment to Rounds. If he chose to take a title in his own name, without the consent of Conklin, and hold it for himself, he did an act not in the course of his agreement with Conklin, but outside of it, and could not compel Conklin to share in a purchase which was not made absolute by his election, or in pursuance of his contract with Parshall. We see no error in the charge.

Judgment affirmed.